Excerpted From: Eugene F. Pigott Jr., Criminal Leave in the Court of Appeals a Case of Implicit Bias?, 85 Albany Law Review 169(2021-2022)(71 Footnotes)(Full Document)


EugeneFPigottJrOn October 16, 2019, I delivered a lecture at the Albany Law School as part of the Hugh Jones Lecture Series. In responding to the invitation to deliver this lecture, I contemplated two things: a topic of general interest, at least to the legal community, and one in which I could bring a modicum of unique experience. The topic, therefore, became Criminal Leaves to Appeal to the Court of Appeals of the State of New York. Below, in sum and substance, is my lecture. I have added a thought on how the current procedure may impact the way others may view the Court.

My point of view comes from twenty-five years as a trial lawyer, both civil and criminal; service on the board of trustees of the Legal Aid Society of Buffalo and Erie County, including a term as its president; and a judicial career that included time as a trial judge, associate justice of the Appellate Division, Fourth Department, Presiding Justice of that court, and ten years as an associate judge of the Court of Appeals.

As a trial lawyer in a criminal case, one's duty and, therefore, point of view differs markedly from that of a judge. Applying one's knowledge and skill for the benefit of a single defendant who may be facing substantial time in prison is considerably different, and much more pressuring, than that of a judge who comes to the conflict with no prior commitment to any particular outcome.

That is not to say that the task of the judge is easier. A judge must consider the merits of a case, sometimes in the context of vastly different lawyering skills and preparation; confusing and differing testimony; and the application of appropriate law--whether or not provided by the legal combatants. In the criminal context, unlike the civil, substantial liberty interests are often at stake.

Bringing this experience to bear, I offer the following thoughts about the handling of leaves to appeal to the Court of Appeals from our intermediate appellate courts. Ultimately, my view is that the process for seeking review by the state's highest court should be the same for civil and criminal cases. It may come as a surprise to the uninitiated that while civil cases receive the full panoply of process due a case or controversy, criminal cases receive no such care. Leave to appeal in criminal case is relegated to a fast food style of justice that, in my view and experience, can and almost certainly has led to injustice. I suspect this has been so on more than one occasion.

[. . .]

It seems clear to me, based on my ten years of experience on the Court of Appeals, with the foregoing being just a few examples of the cases that came before this one judge, that the Court should seriously consider the recommendation of nearly every interested party, commission, and association that has studied the procedure for CLAs. Applications seeking an appeal in criminal cases should be treated with the same degree of collective-court deliberation as motions for leave to appeal in civil cases.

Recently, the Courts of New York, recognizing the “solemn obligation to take a leadership role in addressing ... [t]he existence or even the perception of bias or racism anywhere in our [court system],” commissioned a study of policies and practices of the state's courts regarding issues of racial bias and fairness. Following that study, the commission made a number of findings and proposals, noting that “[t]he sad picture that emerges is, in effect, a second-class system of justice for people of color in New York State.”

Not addressed by the study was the issue which is the subject of this article. Nevertheless, it cannot be lost on anyone familiar with the Court of Appeals' CLA process, that the difference in procedures for seeking and receiving an appeal in the state's highest court between civil and criminal cases inevitably impacts criminal litigants, disproportionately poor and persons of color, much more than civil litigants. Justice calls for change. As attorney Alan J. Pierce wrote in this law review in 2010: “[i]f the system is not working[,] let's fix it[!]”


I was a judge on the State of New York Court of Appeals, the state's highest court from 2006 to 2016, when I retired because of the state's mandatory retirement age of 70.